Radovski v Commissioner for Fair Trading [2021] NSWCATOD 223

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Radovski v Commissioner for Fair Trading [2021] NSWCATOD 223 Hearing dates: 8 April 2021 Date of orders: 4 June 2021 Decision date: 04 June 2021 Jurisdiction: Occupational Division Before: C Ludlow, Senior Member Decision: 1. The decision under review is set aside. 2. In substitution of the decision under review, a copy of the applicant's March 2020 examination paper is to be disclosed to the applicant within 28 days of the date of this decision. Catchwords: FREEDOM OF INFORMATION – government information – prejudice to agency functions – prejudice to conduct, effectiveness or integrity of test – evidentiary onus on respondent Legislation Cited: Administrative Decisions Review Act 1998 (NSW) Building and Development Certifiers Act 2018 (NSW) Evidence Act 1995 (NSW) Government Information (Public Access) Act 2009 (NSW) Cases Cited: Attorney-General's Department v Cockcroft (1986) 10 FCR 180 McKinnon v Secretary, Department of Treasury [2006] HCA 45 Mannix v Department of Education and Communities [2014] NSWCATAD 35 Texts Cited: None Category: Principal judgment Parties: Peco Radovski (Applicant) Commissioner for Fair Trading (Respondent) Representation: Applicant (Self-Represented) Department of Customer Service (Respondent) File Number(s): 2020/00365195 Publication restriction: None

REASONS FOR DECISION

Background 1. Mr Peco Radovski is seeking review of a decision by the Commissioner for Fair Trading to refuse him access to information he has requested under the Government Information (Public Access) Act 2009 (GIPA Act). 2. The applicant sat for an examination set by the Building Professionals Board in March 2020 to become an accredited certifier. He was notified that he had he had not received a sufficiently high score to be registered as a certifier. He sought information under the GIPA Act as follows: "…access to the exam paper document and the examiner or independent panel to be able to understand examiners findings…" 1. It was not disputed by the applicant that the respondent arranged a meeting with him at which his examination results were explained and he was advised to undertake a short course before resitting the examination. However this did not resolve his concerns and he sought access to the examination paper under the GIPA Act. The respondent refused Mr Radovski's request for access to the examination paper and his answers in reliance upon the public interest considerations against disclosure in clauses 1(f) and 1(h) of s 14 in the GIPA Act. 2. Mr Radovski sought a review by the Information Commissioner. The Information Commissioner did not recommend that the respondent make a different decision. On internal review the respondent affirmed its previous decision.

The proceedings 1. Directions were made on 15 February 2021 requiring each party to file evidence including statements, documents and submissions on specified dates prior to the hearing. On the day of the hearing I noted that the respondent had filed submissions and a bundle of documents but no witness statements. Mr Coss, legal representative for the Board, said that he had witnesses available to give evidence if required. 2. I pointed out that allowing the respondent to lead witness evidence without having provided statements would prejudice Mr Radovski as he had no notice of the witness evidence to be led. After a short adjournment both parties said that they wished the matter to proceed that day. It proceeded on the basis of the material before the Tribunal. 3. Towards the end of the hearing it appeared that the parties might be able to resolve the matters in dispute. I therefore reserved my decision but made directions whereby the parties would inform the Tribunal within 7 days if the matter was resolved. The matter did not resolve, so these reasons for decision have been issued.

Relevant legislation 1. Section 5 of the GIPA Act provides: "5 Presumption in favour of disclosure of government information There is a presumption in favour of the disclosure of government information unless there is an overriding public interest against disclosure." 1. Section 9 provides: "9 Access applications (1) A person who makes an access application for government information has a legally enforceable right to be provided with access to the information in accordance with Part 4 (Access applications) unless there is an overriding public interest against disclosure of the information. (2) An agency is not subject to the direction or control of any Minister in the exercise of the agency's functions in dealing with a particular access application. (3) The function of making a reviewable decision in connection with an access application made to an agency may only be exercised by or with the authority (given either generally or in a particular case) of the principal officer of the agency. 1. Sections 12 to 15 provide: "12 Public interest considerations in favour of disclosure (1) There is a general public interest in favour of the disclosure of government information. (2) Nothing in this Act limits any other public interest considerations in favour of the disclosure of government information that may be taken into account for the purpose of determining whether there is an overriding public interest against disclosure of government information. Note— The following are examples of public interest considerations in favour of disclosure of information— (a) Disclosure of the information could reasonably be expected to promote open discussion of public affairs, enhance Government accountability or contribute to positive and informed debate on issues of public importance. (b) Disclosure of the information could reasonably be expected to inform the public about the operations of agencies and, in particular, their policies and practices for dealing with members of the public. (c) Disclosure of the information could reasonably be expected to ensure effective oversight of the expenditure of public funds. (d) The information is personal information of the person to whom it is to be disclosed. (e) Disclosure of the information could reasonably be expected to reveal or substantiate that an agency (or a member of an agency) has engaged in misconduct or negligent, improper or unlawful conduct. (3) The Information Commissioner can issue guidelines about public interest considerations in favour of the disclosure of government information, for the assistance of agencies. 13 Public interest test There is an overriding public interest against disclosure of government information for the purposes of this Act if (and only if) there are public interest considerations against disclosure and, on balance, those considerations outweigh the public interest considerations in favour of disclosure. 14 Public interest considerations against disclosure (1) It is to be conclusively presumed that there is an overriding public interest against disclosure of any of the government information described in Schedule 1. (2) The public interest considerations listed in the Table to this section are the only other considerations that may be taken into account under this Act as public interest considerations against disclosure for the purpose of determining whether there is an overriding public interest against disclosure of government information. (3) The Information Commissioner can issue guidelines about public interest considerations against the disclosure of government information, for the assistance of agencies, but cannot add to the list of considerations in the Table to this section. (4) The Information Commissioner must consult with the Privacy Commissioner before issuing any guideline about a privacy-related public interest consideration (being a public interest consideration referred to in clause 3 (a) or (b) of the Table to this section). Table 1 Responsible and effective government There is a public interest consideration against disclosure of information if disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)— … (f) prejudice the effective exercise by an agency of the agency's functions, … (h) prejudice the conduct, effectiveness or integrity of any audit, test, investigation or review conducted by or on behalf of an agency by revealing its purpose, conduct or results (whether or not commenced and whether or not completed). …" 15 Principles that apply to public interest determination A determination as to whether there is an overriding public interest against disclosure of government information is to be made in accordance with the following principles— (a) Agencies must exercise their functions so as to promote the object of this Act. (b) Agencies must have regard to any relevant guidelines issued by the Information Commissioner. (c) The fact that disclosure of information might cause embarrassment to, or a loss of confidence in, the Government is irrelevant and must not be taken into account. (d) The fact that disclosure of information might be misinterpreted or misunderstood by any person is irrelevant and must not be taken into account. (e) In the case of disclosure in response to an access application, it is relevant to consider that disclosure cannot be made subject to any conditions on the use or disclosure of information." 1. Section 55 provides: "55 Consideration of personal factors of application (1) In determining whether there is an overriding public interest against disclosure of information in response to an access application, an agency is entitled to take the following factors (the personal factors of the application) into account as provided by this section— (a) the applicant's identity and relationship with any other person, (b) the applicant's motives for making the access application, (c) any other factors particular to the applicant. (2) The personal factors of the application can also be taken into account as factors in favour of providing the applicant with access to the information. (3) The personal factors of the application can be taken into account as factors against providing access if (and only to the extent that) those factors are relevant to the agency's consideration of whether the disclosure of the information concerned could reasonably be expected to have any of the effects referred to in clauses 2–5 (but not clause 1, 6 or 7) of the Table to section 14. (4) An applicant is entitled to provide any evidence or information concerning the personal factors of the application that the applicant considers to be relevant to the determination of whether there is an overriding public interest against disclosure of the information applied for. (5) An agency may, as a precondition to providing access to information to an applicant, require the applicant to provide evidence concerning any personal factors of the application that were relevant to a decision by the agency that there was not an overriding public interest against disclosure of the information and, for that purpose, require the applicant to take reasonable steps to provide proof of his or her identity. (6) An agency is under no obligation to inquire into, or verify claims made by an access applicant or any other person about, the personal factors of the application but is entitled to have regard to evidence or information provided by the applicant or other person. Note— An agency is not entitled to impose any conditions on the use or disclosure of information when the agency provides access to the information in response to an access application. See section 73." 1. Section 105 provides: "105 Onus on agency to justify decisions (1) In any review under this Division concerning a decision made under this Act by an agency, the burden of establishing that the decision is justified lies on the agency, except as otherwise provided by this section. (2) If the review is of a decision to provide access to government information in response to an access application, the burden of establishing that there is an overriding public interest against disclosure of information lies on the applicant for review. (3) If the review is of a decision to refuse a reduction in a processing charge, the burden of establishing that there is an entitlement to the reduction lies on the applicant for review. (4) If the review is of a decision to include information in a disclosure log despite an objection by the applicant for review, the burden of establishing whether the objection outweighs the general public interest to have the information included lies with the applicant for review." 1. The Building and Development Certifiers Act 2018 (the BDC Act) provides for the registration of persons to carry out certification work under the Act. The objects of the Act include: 1. to provide for the registration of persons to carry out certification work and the accreditation of persons to carry out other regulated work, and 2. to recognise that certification work is an important public function with potential impacts on public health, safety and amenity and to ensure that it is carried out impartially, ethically and in the public interest. 1. Section 5 provides that a person must not carry out certification work unless the person is registered and the registration authorises the person to carry out the certification work, or the person is otherwise lawfully authorised to carry out the certification work. 2. Section 8 provides: "8 Application for registration (1) A person may apply to the Secretary for a grant of registration. Note— The definition of grant registration in section 4 (1) includes grant a renewal or restoration of registration. (2) An application must— (a) be in a form approved by the Secretary, and (b) include or be accompanied by information or evidence that the Secretary reasonably requires to assess the application. Note— Part 5A of the Crimes Act 1900 contains offences relating to the making of false or misleading applications or providing false or misleading information or documents. Those offences have a maximum penalty of imprisonment for 2 years or a fine of $22,000 (or both). (3) The regulations may provide for a fee to be paid for an application for the grant of registration. (4) The Secretary may require the fee to accompany the application. (5) If the Secretary considers it necessary to do so, the Secretary may require either or both of the following— (a) further documents or information to be provided by the applicant, (b) in the case of an applicant who is an individual, that the applicant attend an interview, undertake an oral or written examination or provide a demonstration of the applicant's skills. (6) If an application for the grant of a renewal of registration is duly made to the Secretary before the expiry of registration, the registration is taken to continue in force until the Secretary notifies the applicant of a decision to grant or refuse the application."

Respondent's case 1. The respondent opposed disclosure of the examination paper on the basis that disclosure of the information could reasonably be expected to have one or more of the following effects (whether in a particular case or generally)— 1. That it would prejudice the effective exercise by the Board of the Board's functions, and 2. That it would prejudice the conduct, effectiveness or integrity of the examination by revealing its purpose, conduct or results. 1. The respondent tendered a bundle of documentation relating to its decision. This included correspondence from a Mr Jonathan Lynch on behalf of the Board which showed that Mr Lynch strongly objected to the release of the examination papers and stated that: 1. The release of the examination paper would undermine the effectiveness and integrity of the accreditation examination. 2. It had been the policy since the introduction of the accreditation examination in 2010 not to release the paper, to ensure the effectiveness and integrity of the examination process. 3. If the paper was released the information it contained was expected to be made widely available to the industry, requiring the respondent to spend significant resources preparing new examination questions and standard answers for a marking matrix for only one or two persons who fail the examination and want copies of the papers. 4. There were only about 12 people who sat the examination each year and it would not be efficient to spend a significant amount of the Board's resources preparing new questions, standard answers and a matrix, to enable previous papers to be circulated. 1. The respondent in these proceedings also submitted that the applicant's motives should be taken into account in that he wished to challenge the integrity of the examination and whether it met industry practice and legal requirements. It was not simply to be used to help him do better the next time he took the examination. 2. The respondent relied upon the decision of this Tribunal in Mannix v Department of Education and Communities [2014] NSWCATAD 35. In that case a parent sought access under the GIPA Act to the 2012 Opportunity Class test question booklet. This was a test which identified gifted and talented pupils for places at selected schools. The application was refused by the respondent based on an overriding public interest against disclosure in reliance on clauses 1(f) and 1(h) as the respondent has done in this case. 3. In that case, the Department relied upon the evidence of an officer who processed OC applications. Her evidence was that the OC tests involved extensive work by experts and was revised each year to ensure currency. The test development process was conducted with strict protocols and security to ensure confidentiality and to safeguard the integrity and effectiveness of the test. It cost the respondent more than $180,000 to develop the test questions each year and the process took approximately 6 months to complete. Disclosing the 2012 questions would not only diminish the contingency pool for a backup test, thereby prejudicing the department's risk management measures and its functions in operating effective and robust tests, but it would also prejudice the effectiveness and integrity of the OC tests as perceived by the general public. It could be seen as an indication that the respondent was unable to safeguard confidential information, which could cause loss of public confidence in the validity of the OC test results. 4. Further, the respondent wanted to keep the test material out of the hands of certain unscrupulous coaching colleges which made exaggerated claims about helping children to do well in the test. Question booklets from 2001, 2002 and 2003, as well as a set of sample test papers had been released to provide applicants with examples to use in preparing for the test. 5. The Tribunal Member in Mannix noted that the respondent bore the onus of justifying its decision to refuse the applicant access to the information and had the burden of establishing that the public interest considerations against disclosure it relied on, do in fact apply. It also had the burden of establishing that, on balance, they outweigh the public interest considerations in favour of disclosure. He found that the respondent had discharged this evidentiary burden and upheld its decision.

Applicant's case 1. Mr Radovski said the decision in Mannix was not comparable to the current situation. He questioned whether the respondent was acting transparently and in the public interest. He also said that his attempts to get more information about the respondent's requirements for registration and find out what he would need to do to become accredited had been difficult and frustrating and the respondent had only met with him because he complained to the Ombudsman. 2. He questioned if the respondent was complying with clauses 41 to 45 of the BDC Regulation. Clause 42 provides "42 Accreditation An accreditation scheme must provide for the following— (a) a process for the accreditation of persons that is fair, impartial, transparent and timely, (b) the period for which accreditation is granted, being at least 1 year and no more than 5 years, (c) the ability for a person to apply for accreditation regardless of whether the person is a member of the accreditation authority." 1. He said he understood that there would be a financial cost of creating a new test but the test had not changed in 10 years and queried whether this was in the public interest as it may need revision. He said that anyone could find out how many building regulations had changed in the past ten years but the examination remained the same. 2. He also raised clauses 41, 43, 44 and 45 of the BDC Regulation as being relevant to the issues.

Consideration 1. In this case, the respondent has the evidentiary burden of establishing that disclosure of the examination booklet could reasonably be expected to prejudice the Board's function of examining applicant certifiers for the purpose of the registration scheme (1(f)), or to prejudice the conduct, effectiveness or integrity of the examination by revealing its purpose, conduct or results (1(h)). 2. The words "could reasonably be expected to" are to be given their ordinary meaning: see Attorney-General's Department v Cockcroft (1986) 10 FCR 180 where Bowen CJ and Beaumont J explained, at 190, that the words "...require a judgment to be made by the decision-maker as to whether it is reasonable, as distinct from something that is irrational, absurd or ridiculous, to expect that those who would otherwise supply information of the prescribed kind to the agency would decline to do so if the document in question were disclosed under the Act. It is undesirable to attempt any paraphrase of these words. In particular it is undesirable to consider the operation of the provision in terms of probabilities or possibilities or the like." 1. See also McKinnon v Secretary, Department of Treasury [2006] HCA 45 at [61]. 2. The respondent's evidence on these issues consists of the documentary evidence relating to its decision and the reasons for the decision under review. It is for the respondent to establish that the public interest considerations against disclosure it relies on apply in this case. 3. As to 1(f), I am satisfied that administering the examination for applicants to be tested for registration as a certifier is one of the respondent's functions. Under the BDC Act the Secretary may authorise a person to carry out certification work through the registration scheme operated under the Act. An oral or written examination is one of the processes whereby the Secretary may determine under s 8 if a person should be registered as a certifier. 4. As to whether it could reasonably be expected that disclosure of the examination paper would prejudice the carrying out of that function, I am satisfied that the respondent would consider it necessary to develop and issue a new examination paper if the existing paper was disclosed, and that this would put it to some additional effort and expense. However the amount of effort and expense and whether this would prejudice the Board's functions has not been established. 5. The respondent did not file a copy of the examination paper, answers or matrix with the Tribunal therefore it was not possible for me to consider even on this basis how much time and effort might be involved. There was no evidence as to the resources available to the Board. 6. As to 1(h), the Information and Privacy Commission's guide on this clause states that the agency must: 1. establish that the disclosure could reasonably be expected to result in prejudice to the conduct, effectiveness or integrity of the test by revealing its purpose, conduct or results; 2. identify the anticipated prejudice; and 3. identify the causal nexus between the disclosure of the information and the expected prejudice. 1. It was claimed by the respondent that if the paper were released it could be copied and disseminated to a wider audience including the broader certifier industry or even to other individuals seeking to sit the exam, and correct answers could be memorised which would affect the integrity of the examination. 2. I am satisfied that it could reasonably be expected that disclosing the examination paper to Mr Radovski would lead to its wider dissemination, given that Mr Radovski has expressed some criticism of the examination and the Board and it is not possible to put any restrictions on disclosure under the GIPA Act. 3. It could also reasonably be expected that some persons wishing to sit the examination would, if they gained a copy of the paper, scrutinise the questions in an attempt to determine what answers were required. As to whether it could reasonably be expected that this would reveal the purpose, conduct of results of the examination, and therefore prejudice its integrity, conduct or effectiveness, there is simply no evidence before me to establish this. 4. I am not able to draw an inference as to the required cause and effect, particularly when that inference would be based upon another inference regarding what might happen if the paper were disclosed. Logical and probative evidence of this is required before such a conclusion can be reached. 5. I was not asked by the respondent to take judicial notice of any of these matters in the absence of evidence. 6. Section 144 of the Evidence Act 1995 provides: "144 Matters of common knowledge (1) Proof is not required about knowledge that is not reasonably open to question and is— (a) common knowledge in the locality in which the proceeding is being held or generally, or (b) capable of verification by reference to a document the authority of which cannot reasonably be questioned. (2) The judge may acquire knowledge of that kind in any way the judge thinks fit. (3) The court (including, if there is a jury, the jury) is to take knowledge of that kind into account. (4) The judge is to give a party such opportunity to make submissions, and to refer to relevant information, relating to the acquiring or taking into account of knowledge of that kind as is necessary to ensure that the party is not unfairly prejudiced. 1. I do not consider the matters in question are common knowledge nor are they verifiable by reference to a document of the kind referred to. 2. The respondent submits that there is no legislative requirement in the BRD Act which contemplates disclosure of the examination. This is not a relevant consideration as we are considering disclosure under the GIPA Act. It suggests that a new GIPA application would be made each time it prepared a fresh examination paper and that this is a complicated and time-consuming process. Again there is no evidence to support this claim. 3. It also submits that the Information Commissioner was satisfied that the disclosure of the information would prejudice the agency's functions. Firstly, s105 of the GIPA Act does not apply to the Information Commissioner but it does apply to proceedings before the Tribunal. Secondly, the Information Commissioner had a copy of the examination paper to consider, but there was no copy of the paper before the Tribunal. 4. The decision in Mannix is relevant to the issues, but it was decided upon the detailed and specific evidence in that case. I conclude that the respondent has not discharged the onus of establishing that either of the claimed public interest considerations apply in this case. 5. Consequently it is not necessary for me to balance the public interest considerations for and against disclosure. I note however that there is a general public interest in favour of the disclosure of government information; and the Act identifies open discussion of public affairs as a public interest consideration in favour of disclosure. There is a public interest in knowing whether the accreditation scheme for building certifiers is effective and fit for purpose.

Conclusion 1. The onus for justifying its decision to refuse access to information lies with the respondent. Under s 63(1) of the Administrative Decisions Review Act 1998, in determining the application for review the Tribunal is to decide what the correct and preferable decision is having regard to the material before it. 2. This involves determining whether the respondent has justified its decision in relation to the Applicant's access application. In my view it has failed to do so. 3. Under s 63(3) the Tribunal may: 1. affirm the decision, 2. vary the decision, 3. set aside the decision and make a decision in substitution for the decision it set aside, or 4. set aside the decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal. 1. I have decided to set aside the decision of the respondent

Orders 1. The decision under review is set aside. 2. In substitution of the decision under review, a copy of the applicant's March 2020 examination paper is to be disclosed to the applicant within 28 days of the date of this decision.

********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2023